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Public Citizen v. Kantor

The court holds that the Office of the U.S. Trade Representative (OTR) is not required to prepare an environmental impact statement (EIS) for the Uruguay Round of the General Agreement on Tariffs and Trade or to adopt methods and procedures to insure future compliance with the National Environmental Policy Act (NEPA). The court first notes that the U.S. Court of Appeals for the District of Columbia Circuit decision in Public Citizen v. U.S. Trade Representative,23 ELR 21471 (1993), unequivocally forecloses judicial review under the Administrative Procedure Act (APA) of NEPA claims arising from trade agreements concluded pursuant to the Trade Acts. The court holds that the citizen groups' claim that the OTR is required to prepare an EIS for the Uruguay Round is barred under the APA because there is no "final agency action." The OTR's role is closely bound with that of the President in conducting international trade negotiation, and it was the President who submitted the final agreement and who remained free to renegotiate it or to refuse to submit it to Congress. Even after submission, the legislation is not the result of final agency action. Thus, the court cannot use the APA as a basis for review. The court next holds that there is no clear and compelling justification for mandamus relief for the OTR's failure to prepare an EIS evaluating the possible impact of the Uruguay Round. Several courts, including this one, have concluded that the Mandamus Act, 28 U.S.C. § 1361, does not create any new causes of action or substantive rights. The citizen groups' attempt to create a cause of action through the Mandamus Act in circumstances where judicial review is otherwise precluded is without merit. Additionally, there has been no waiver of sovereign immunity through which a writ of mandamus could be issued. The generally accepted rule is that the Mandamus Act does not constitute a waiver of sovereign immunity by the United States. Moreover, although NEPA's waiver of sovereign immunity applies to agencies of the federal government, because of the President's overall discretion, the Uruguay Round is not the result of agency action as contemplated in NEPA. The court holds that the citizen groups' standing to bring this action is doubtful, because it is unclear whether a duty is owed to them and whether they would suffer an injury-in-fact if mandamus relief were not granted. In the case of trade agreements the risk of environmental harm is speculative and extremely difficult to quantify in advance. Finally, the court holds that it cannot require the OTR to develop methods and procedures to comply with NEPA when preparing future trade agreements, because there has been no final agency action as required by the APA. The possibility of future harm to the citizen groups is too speculative given the uncertainty not only about the precise terms of any final agreements, but, more fundamentally, about whether there will ever be final agreements at all.